1 in the high court of karnataka at bangalore...

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1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 6 th DAY OF DECEMBER, 2012 BEFORE THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA WRIT PETITION NO.18428/2012 C/W W.P.NOS.6380/2012, 11611-11621/2012 AND 38597-38600/2011 (S-RES) In W.P.NO.18428/2012 BETWEEN: Sri V.H. Mahesha, S/o. Honnegowda, Aged about 34 years, C/o. N. Sridhar, No.6, II Floor, Govindappa Lane, Thigalarapet, Bangalore – 560 002. ... PETITIONER (By Sri G.S. Aruna for M/s. Kesvy & Co. Advs.) AND: The Registrar General, High Court of Karnataka, Dr. Ambedkar Veedhi, Bangalore – 560 001. ... RESPONDENT (By Smt. Manjula R. Kamadolli, HCGP)

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® IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 6th DAY OF DECEMBER, 2012

BEFORE

THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA

WRIT PETITION NO.18428/2012 C/W

W.P.NOS.6380/2012, 11611-11621/2012 AND

38597-38600/2011 (S-RES)

In W.P.NO.18428/2012

BETWEEN:

Sri V.H. Mahesha, S/o. Honnegowda,

Aged about 34 years, C/o. N. Sridhar, No.6,

II Floor, Govindappa Lane, Thigalarapet,

Bangalore – 560 002. ... PETITIONER

(By Sri G.S. Aruna for M/s. Kesvy & Co. Advs.)

AND:

The Registrar General,

High Court of Karnataka, Dr. Ambedkar Veedhi,

Bangalore – 560 001. ... RESPONDENT

(By Smt. Manjula R. Kamadolli, HCGP)

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W.P.No.18428/2012 is filed under Articles 226 and

227 of the Constitution of India, praying to quash the communication No.CJRC-1/2010 dated 18.2.2012 vide

Annexure –M issued by the respondent, etc.

In W.P.NO.6380/2012

BETWEEN:

Ms. Suneetha, Aged about 32 years,

D/o. Sri Annaiah, Residing at 87/1, 2nd Cross,

KHB Colony, Gubbi Town, Tumkur District – 572 216.

…PETITIONER

(By Sri R. Somasundara, Adv.)

AND:

1. The Registrar General, High Court of Karnataka,

Bangalore – 560 001.

2. The Secretary, Civil Judges Recruitment Committee,

High Court of Karnataka, Bangalore – 560 001.

3. The Government of Karnataka,

Represented by its Chief Secretary,

Secretariat, Vidhana Soudha, Vidhana Veedi,

Bangalore – 560 001. …RESPONDENTS

(By Sri B.V. Acharya, Senior Adv. for R1 & R2;

Smt. Manjula R. Kamadolli, HCGP for R3)

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In W.P.Nos.11611-11621/2012

BETWEEN:

1. Syed Baleegur Rahaman,

S/o. Syed Kaleemulla, Aged 35 years,

Assistant Public Prosecutor, Court of Civil Judge (Jr. Dvn.) and JMFC,

Chintamani, Chikkaballapur District.

2. Madhu A.V.

W/o. D. Dayanand, Aged 31 years,

Assistant Public Prosecutor,

Court of Civil Judge (Sr. Dvn.) and JMFC, Madhugiri,

Tumkur District.

3. Rajashekar M. Tilanganji, S/o. Mallikarjun,

Aged 31 years, Assistant Public Prosecutor,

Court of Civil Judge (Jr. Dvn.) and JMFC, Siddapur Taluk,

Uttara Kannada District.

4. Hayyalappa, S/o. Ningappa Balbatti,

Aged 40 years,

Assistant Public Prosecutor, Court of Civil Judge (Jr. Dvn.) and JMFC,

Lingusugur, Raichur District.

5. D. Dayanand

S/o. K.V. Devendrappa, Aged 31 years,

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Assistant Public Prosecutor,

Court of IIIrd Addl. Civil Judge (IInd Dvn.) and JMFC,

Tumkur, Tumkur District.

6. Jagadeesh G. Biseratti,

S/o. Gulappa Biseratti, Aged 35 years,

Assistant Public Prosecutor Cum Assistant Government Pleader,

Court of Civil Judge and JMFC, Hadagali,

Bellary District.

7. J.R. Ramesh,

S/o. Ramanna, age 38 years, Assistant Public Prosecutor

Cum Assistant Government Pleader, Court of Civil Judge (Jr.Dvn.) and JMFC Court,

Srinivaspur, Kolar District.

8. Raghavendra Raykar,

S/o. Vasudeva, age 38 years, Assistant Public Prosecutor,

Court of Additional Civil Judge (Sr.Dvn.) and JMFC., Chikkamagalur,

Chikkamagalur District.

9. Thammanna C.

S/o. Chowdegowda, Aged 37 years,

Assistant Public Prosecutor, Court of Addl. Civil Judge (Sr.Dvn.)

and JMFC., Puttur, Dakshina Kannada District.

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10. Mallikarjunagouda Doddagoudar,

S/o. Basavanagowda, Age 32 years,

Assistant Public Prosecutor, Court of Civil Judge (Jr.Dvn.) and JMFC Court,

Savanur Taluk, Haveri District.

11. Amaravathi,

W/o. Dr. Nagappa B.H. Age 31 years,

Assistant Public Prosecutor Cum Assistant Government Pleader,

Court of Civil Judge (Sr.Dvn.) and JMFC, Savadatti, Belgaum District.

…PETITIONERS

(By Sri Vikas Rojipura for M/s. Ravivarma Kumar Associates, Advs.)

AND:

1. High Court of Karnataka,

Bangalore – 560 001 Represented by its Registrar General.

2. The Recruitment Committee for

Selection to the post of Civil Judges, Represented by Registrar General,

The High Court of Karnataka, Bangalore – 560 001.

3. State of Karnataka, Represented by its Secretary,

Department of Law, Vidhana Soudha,

Bangalore – 560 001. …RESPONDENTS

(By Sri B.V. Acharya Senior Adv. for R1 & R2; Smt. Manjula R. Kamadolli, HCGP for R3)

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W.P.Nos.11611-11621/2012 is filed under Article

226 of the Constitution of India, praying to declare the resolution dated 22.4.2011 of R1, based on which APPs are

being denied the opportunity to be considered for appointment as Civil Judges under the Karnataka Judicial

Service (Recruitment) Rules 2004, in Annexure-A as amended by the Karnataka Judicial Service (Recruitment)

(Amendment) Rules, 2011, in Annexure –E, as illegal & void.

In W.P.Nos.38597-38600/2011

BETWEEN:

1. Sri N.A. Jayachandra Reddy,

S/o. late Ashwathanarayana Reddy,

Aged about 35 years, Occ: Junior Law Officer,

BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike,

Bangalore, R/o. D.No.1396, Polytechnin Hostel Road,

Behind KEB Quarters, Chintamani, Chikkaballapura District.

2. Sri S.K. Ramegowda S/o. Krishnegowda,

Aged about 32 years, Occ: Junior Law Officer,

BBMP Legal Cell, Bruhat Bangalore Mahanagar Palike,

Bangalore,

R/o. No.159 R.M.L. Road, Sollepura, At post: Kikkeri HO, Tq: K.R. Pet,

Mandya District.

3. Sri Basavaraj Y. Ambiger, S/o. Yamanappa Ambiger,

Aged about 32 years, Occ: Junior Law Officer,

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BBMP Legal Cell,

Bruhat Bangalore Mahanagar Palike, Bangalore,

R/o. No.13, 4th ‘D’ Main, Bairaveshwaranagar,

Nagarbhavi Main Road, Bangalore – 560 072.

4. Smt. Chaitra Honnapura,

D/o. Indudhar HOnnapura, Aged about 28 years,

Occ: Junior Law Officer, BBMP Legal Cell,

Bruhat Bangalore Mahanagar Palike, Bangalore,

R/o. No.402, 1st Main, II Block,

HBR Layout, Bangalore.

…PETITIONERS

(By Sri I.G.Gachchinamath, Adv.)

AND:

1. The State of Karnataka, By its Secretary to Department of Law,

Justice and Human Rights Department, Vidhana Soudha,

Bangalore – 560 001.

2. The Under Secretary to Government,

(Admn-I), Law, Justice and Human Rights Department,

Vidhana Soudha, Bangalore – 560 001.

3. The Registrar General,

High Court of Karnataka, Bangalore – 560 001.

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4. The Secretary,

Civil Judges Recruitment Committee, High Court of Karnataka,

Bangalore – 560 001. …RESPONDENTS

(By Smt. Manjula R. Kamadolli, HCGP)

W.P.Nos.38597-38600/2011 are filed under Articles 226 and 227 of the Constitution of India, praying to call for

the records and direct the respondents to modify the Notification specifying eligibility conditions vide Annexure –

E dated 6.8.2011 including the Junior Law Officers of BBMP under category B(3) and further permit the petitioners to

take up the examination for the post of Civil Judge.

These petitions having been reserved, the Court

pronounced the following:

O R D E R

These petitions involve common questions of fact

and law in the matter of direct recruitment to the posts of

Civil Judges. In substance, petitioners have sought

striking down the provision under Sl.No.3, Rule 4 of the

Karnataka Judicial Service (Recruitment) Rules, 2004, as

inserted by the Karnataka Judicial Service (Recruitment)

(Amendment) Rules, 2011, (for short “Rules, 2011”),

framed by the Governor of Karnataka in exercise of powers

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conferred by Articles 233 and 234 of the Constitution of

India. The petitioners have also sought incidental reliefs.

2. Petitioners in W.P.No.6380/2012 and

W.P.Nos.11611-11621/2012 are working as Additional

Public Prosecutors-cum-Additional Government Pleaders,

having been recruited by the Government of Karnataka.

Petitioner in W.P.No.18428/2012, a law graduate and

enrolled as an advocate in the Karnataka State Bar

Council, having been recruited as FDA in the Revenue

Department of Government of Karnataka has joined

Karnataka Government service. Petitioners in W.P.38597-

38600/2011, being law graduates, after enrolling as

advocates in the Karnataka State Bar Council, are now

working as Junior Law Officers in Bruhat Bangalore

Mahanagara Palike as its servants.

3. On 6.8.2011, High Court of Karnataka, invited

applications for recruitment to 152 posts of “Civil Judge

(the then Civil Judge) (Jr.Dn.)”. A Notification bearing

No.CJRC 1/2010, Bangalore, dated the 6th August, 2011

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was published in the Karnataka Gazette. The qualification

prescribed for direct recruitment is that the candidate must

be holder of a degree in law and must have been enrolled

as an advocate. For recruitment of in-service candidates,

the minimum qualification prescribed is degree in law

granted by a University and the candidate as on the last

date fixed for receipt of applications, must not have

crossed 43 years of age in case of he/she belonging to

SC/ST and 40 years of age in case of others. It was made

clear as per “Sl.No.B(3)-Recruitment of in-service

candidates” of the said Notification that, no officer/official in

service shall be eligible for appointment as Civil Judge unless

he/she is working in the High Court and Courts subordinate to the

High Court.

4. Petitioners possessing law degree and having

enrolled as advocates, sent their applications as ‘in-service

candidates’. While scruitinising the applications, it was

noticed that the petitioners are not working in the High

Court and Courts subordinate to the High Court and hence,

the petitioners’ applications were rejected i.e., on the

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ground that they fall outside the condition under the

heading “B- Recruitment of in-service candidates” of the

said Notification. Assailing the validity of Sub-Rule (3) of

Rule 4 of the Karnataka Judicial Service (Recruitment)

(Amendment) Rules, 2011 and also the aforesaid clause in

the recruitment Notification, these writ petitions have been

filed.

5. Statement of objections has been filed by the

respondents in justification of the impugned Rule, the

condition in the recruitment notification and also the

decision taken by the Recruitment Committee to reject the

applications of the petitioners. It has been stated that the

impugned Rule is valid and consequently, the impugned

condition in the recruitment Notification is also valid and

since the petitioners do not fall within the meaning of

‘service’ defined under R.2(f) of the Rules, they are not

entitled to participate in the recruitment process

undertaken as per the Recruitment Notification dated

6.8.2011.

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6. Having perused the writ petitions and the

counters filed, it is apparent that the dispute is as to the

validity of the provision under heading “B – Recruitment of

in-service candidates”. The said Rule reads as follows:

“B – Recruitment of in-service candidates”:-

(1)…………………..

(2)………………….

(3) “No officer/official in service shall be eligible for

appointment as Civil Judge unless he/she is working in the

High Court and Courts subordinate to the High Court in the

following cadres, namely:-

(a) Deputy Registrars

(b) Assistant Registrars / Public Relation Officer / Chief

Librarian.

(c) Section Officers / Court Officers / Senior Judgment

Writers / Deputy Librarians.

(d) Assistant Court Officers / Senior Assistants / Judgment

Writers.

(e) Stenographers / First Division Assistants / Assistant

Librarians.

(f) Chief Administrative Officer / Assistant Registrars.

(g) Sheristedars and Senior Sheristedars.

(h) Bench Clerks-Grade I and II.”

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7. Learned advocates appearing for the

petitioners contended, that by prescribing the restriction/

limitation, that an applicant must be an officer/official in

Karnataka Judicial Service working in the High Court and

Courts subordinate to the High Court, the Rule has violated

their fundamental rights guaranteed under Articles 14 and

16(1) of the Constitution of India. They submitted that on

account of the amended Rule prescribing limitation, the

petitioners who are law graduates also enrolled as

advocates and being civil servants or persons working in

local bodies, stand disqualified and the action amounts to

hostile discrimination. They contended that there has to

be equality of opportunity to all citizens in the matters

relating to employment or appointment to any office under

the State and that Article 14 forbids class legislation.

Learned counsel further contend that the impugned Rule

being ultra vires of the Constitution, be struck down.

8. Sri B.V. Acharya, learned Senior counsel,

appearing for the High Court and the Recruitment

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Committee, on the other hand, contended that when the

statutory Rule is assailed on the ground that it contravenes

Article 14, its validity can be sustained, if, two tests are

satisfied i.e., (1) The classification on which it is founded

must be based on an intelligible differentia which

distinguishes persons or things grouped together from

others left out of the group; and (2) That the differentia in

question must have a reasonable relation to the object

sought to be achieved by the rule or statutory provision in

question. He submitted that the classification on which

statutory provision must be founded may be referable to

different considerations or the objects sought to be

achieved and that there must be some nexus between the

basis of the classification and object intended to be

achieved by the Statute. He submitted that the object of

the Rules is to recruit suitable and proper persons to the

judicial service in the State of Karnataka with a view to

secure fair and efficient administration of justice and with

that view, a policy decision was taken by the Full Court of

the High Court, to permit recruitment of in-service

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candidates by limiting the same to the officers/officials

working in the High Court and courts subordinate to the

High Court. He submitted that it is permissible for an

employer to take a policy decision with the view to secure

fair and efficient administration. He further submitted that

the recruitment of in-service candidates was ‘limited to in-

service candidates’, as above, keeping in view the decision

in the case of Mallaraddi H. Itagi and others vs. High Court

of Karnataka, by its Registrar General and another, ILR

2002 KAR 2093, which was upheld by the Apex Court in

C.A.947-956/2003 on 18.5.2009.

9. ‘Recruitment of in-service candidates’ has been

limited to those officers and officials working in the High

Court and the Courts subordinate to the High Court. Is the

impugned Rule valid?

10. There is no dispute that the petitioners are not

in ‘Karnataka Judicial Service’ working either in the High

Court or the Courts subordinate to it. Sri Mallaraddi H.

Itagi and others, either as Public Prosecutors or Senior

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Public Prosecutors, who were in service of the State of

Karnataka, had filed W.P.Nos.47330 to 47339/2001,

aggrieved by a decision taken by the Committee

constituted by the High Court for the purpose of

considering the claims of the applicants for appointment to

the posts of District Judges, wherein, the Committee had

taken a decision that, Assistant Public Prosecutors/Senior

Public Prosecutors/Public Prosecutors, are not eligible to be

considered for recruitment to the posts of District Judges.

After consideration of the rival contentions, the writ

petitions were dismissed (See ILR 2002 KAR 2093). The

said order having been assailed by the unsuccessful writ

petitioners, was upheld by the Apex Court in C.A. 947-

956/2003, on 18.05.2009. It was found that the

Additional Public Prosecutors/Public Prosecutors are regular

Government servants, who have been employed under the

State Government Rules called “The Karnataka

Department of Prosecutions and Government Litigations

(Recruitment) Rules”, 1982 and that they could not be said

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to be the advocates while working as Additional Public

Prosecutors or Public Prosecutors.

11. In the case of Union of India vs. Pushpa Rani

and Others, (2008) 2 SCC (L&S) 851, the Apex Court has

held as follows:

“37. Before parting with this aspect of the case, we consider it

necessary to reiterate the settled legal position that matters

relating to creation and abolition of posts, formation and

structuring/restructuring of cadres, prescribing the source/mode

of recruitment and qualifications, criteria of selection, evaluation

of service records of the employees fall within the exclusive

domain of the employer. What steps should be taken for

improving efficiency of the administration is also the preserve of

the employer. The power of judicial review can be exercised in

such matters only if it is shown that the action of the employer is

contrary to any constitutional or statutory provision or is patently

arbitrary or is vitiated due to mala fides. The court cannot sit in

appeal over the judgment of the employer and ordain that a

particular post be filled by direct recruitment or promotion or by

transfer. The court has no role in determining the methodology

of recruitment or laying down the criteria of selection. It is also

not open to the court to make comparative evaluation of the

merit of the candidates. The court cannot suggest the manner

in which the employer should structure or restructure the cadres

for the purpose of improving efficiency of administration.”

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12. In the case of State of Gujarath and Others vs.

Arvindkumar T Tiwari and Another, (2012) 9 SCC 545, the

Apex Court has held as follows:

“12. Fixing eligibility for a particular post or even for admission to

a course falls within the exclusive domain of the legislature/

executive and cannot be the subject-matter of judicial review,

unless found to be arbitrary, unreasonable or has been fixed

without keeping in mind the nature of service, for which

appointments are to be made, or has no rational nexus with the

object(s) sought to be achieved by the statute. Such eligibility

can be changed even for the purpose of promotion, unilaterally

and the person seeking such promotion cannot raise the

grievance that he should be governed only by the rules existing,

when he joined service. In the matter of appointments, the

authority concerned has unfettered powers so far as the

procedural aspects are concerned, but it must meet the

requirement of eligibility, etc. The court should therefore, refrain

from interfering, unless the appointments so made, or the

rejection of a candidature is found to have been done at the cost

of “fair play”, “good conscience” and “equity”. (Vide State of J &

K Vs. Shiv Ram Sharma, (1999) 3 SCC 653 and Praveen Singh

Vs. State of Punjab, (2000) 9 SCC 633.”

13. Keeping in view the order/decision in the case

of Mallaraddy H. Itagi (supra), the Full Court of the High

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Court has taken the policy decision to place limitation in

the matter of recruitment of in-service candidates, to the

officers and officials working in the High Court and Courts

subordinate to the High Court. Based on the

recommendation of the High Court, the Rule was

amended, providing for recruitment of in-service

candidates, limited to the officers/officials working in the

High Court and Courts subordinate to the High Court.

14. In the case of Hamdard Dawakhana and

Another vs. The Union of India, AIR 1960 SC 554, while

referring to the earlier decisions, the Apex Court has held

as follows:

“ 8. Therefore when the constitutionality of an enactment is

challenged on the ground of violation of any of the articles in Part III

of the Constitution, the ascertainment of its true nature and character

becomes necessary i.e., its subject matter, the area in which it is

intended to operate, its purport and intent have to be determined. In

order to do so it is legitimate to take into consideration all the factors

such as history of the legislation, the purpose thereof, the

surrounding circumstances and conditions, the mischief which it

intended to suppress, the remedy for the disease which the

legislature resolved to cure and the true reason for the remedy.”

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15. The object of the Rules is to recruit suitable

and proper persons to the Karnataka Judicial Service with

a view to secure fair and efficient administration of justice.

It is trite that the competent authority can prescribe

qualifications for eligibility for appointment to the Service.

With the said object in view, in the matter of recruitment

of in-service candidates, limitation has been placed, since

the officers and officials working in the High Court and

Courts subordinate to the High Court, would be aware of

the procedures and practices followed by the Courts in the

matter of efficient administration of justice. This Court and

the Apex Court, in the case of Mallaraddi H Itagi (supra),

have highlighted as to how the Additional Public

Prosecutors/ Public Prosecutors being Government

servants, are not qualified to appear in the recruitment

process to the posts of District Judges. The position of

Junior Law Officers working in Bruhat Bangalore

Mahanagara Palike or FDA in Revenue Department, cannot

be different. The High Court, while recommending for

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amendment of the Rule to provide for recruitment of in-

service candidates, has kept in view the findings and

observations made in the cases of Mallaraddi H Itagi

(supra). In the said background, the policy decision taken by

the High Court in the matter of limitation placed with regard to

the recruitment of in-service candidates is reasonable and does

not amount to hostile discrimination. There is rational basis

in the matter of placing the limitation with regard to

recruitment of in-service candidates is concerned. In my

considered opinion, the impugned Rule meets the two

tests, noticed supra. Consequently, the impugned Rule

cannot be declared as ultra vires. The condition stipulated

at Clause B- Recruitment of in-service candidates - Sl.No.3 of

the Notification CJRC 1/2010 dated 6th August 2011 is in

consonance with the amended Rule 4 of the Rules.

16. There being no provision for submission of

applications by the officers/officials working in Government

Departments/local bodies etc., i.e., other than those

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working in the High Court and Courts subordinate to the

High Court, the rejection of applications of the petitioners

by the Recruitment Committee is flawless.

In the result, writ petitions stand dismissed, with no

order as to costs.

Sd/- JUDGE

Ksj/- sac*